The Associated Press (via the Washington Post) reports that the Supreme Court has ruled, 5-4, to allow the omnibus anti-abortion law (HB2) to fully take effect before the Federal 5th Circuit hears the matter upon appeal early next year. The court’s opinion, written by Justice Antonin Scalia, held that the court could not overturn the Fifth Circuit unless they could decisively prove the court had erred. This opinion, however, was only joined by Clarence Thstaomas and Samuel Alito. Both Justice Anthony Kennedy and Chief Justice John Roberts, arguably the court’s most centrist Republican-appointees, did not join in the decision, leaving their opinions on the matter up in the air.
The law, which was famously filibustered by Wendy Davis, enacts four major provisions that all seek to reduce the numbers of abortions performed in Texas. Specifically, the constitutionality of the provision requiring abortion doctors to have admitting privileges at a nearby hospital was challenged in this case.
Late last month, a Federal Judge in Austin ruled the provision unconstitutional. Shortly thereafter, a panel of the 5th Circuit decided to take the case up on appeal. However, in the meantime between then and the oral arguments (which are scheduled for January), the Appeals Court ruled that the stricken part of the law could take effect. This had the damaging effect of shuttering nearly half the abortion clinics in Texas, including all of them in the Rio Grande Valley and those west of San Antonio.
Writing for the court’s four more liberal justice, Stephen Breyer lamented the permanent harm the court would do by this decision. Now that the High Court itself has finally weighed into the matter, there is nothing else to do until the 5th Circuit hears arguments in January. At that point, I suppose anything’s possible, including a temporary restraining order, but don’t hold your breath. An Appeals Court decision should come before the summer, most likely permanently reversing the District Court’s opinion. The Supreme Court will likely take up the matter at some point next term, with a decision to be expected in June of 2015.
The fact that Roberts and Kennedy abstained from the opinion itself is somewhat heartening. While Roberts’ moderation is a fairly recent phenomenon and he has been historically
pro-life anti-choice, Kennedy has a long history of nominally pro-choice rulings, including a reaffirmation of Roe. Anything could happen at that point, but 2015 is a long ways off. It pains me to think all the deleterious consequences the law will have in the meantime.